The bill in this case was filed to restrain
the assessment and collection of a drain tax. It is claimed that the assessment of the tax was inequitable and unjust, for the reason that it was spread upon lands which had natural drainage in the opposite direction, or which were high lands, and that the township was not benefited, as the public health did not require that this improvement be made. It is claimed that the assessment was made to include the lands of the complainants through a mistake of fact on the part of the drain commissioner. Some of the complainants appeared and objected to the assessment on the day of letting the contract, under section l?40d8, 3 How. Stat. The highway commissioner did not appear. *291Complainants appealed to the township board, the action of which board was reviewed in this court in Thomas v. Walker Township Board, 116 Mich. 59? (74 N. W. 1048). No appeal was made to equity until the expense of constructing the drain had been incurred and orders issued for the work. It is unnecessary to determine whether the action of the commissioner is reviewable in equity in any case where there is jurisdiction, as we think the complainants are not entitled to invoke equity jurisdiction in a case like the present. Smith v. Carlow, 114 Mich. 67 (72 N. W. 22); Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161).
The decree will be affirmed, with costs.